| The "Eastern Trust" [1994] 2 SLR 526; [1994] SGHC 148 |
| Adm in Rem 657/1992 | |
| 24 May 1994 | |
| High Court | |
| Lai Kew Chai J | |
| Loo Dip Seng (Ang & Partners) for the appellants, Kenneth Tan (Rajah & Tann) for the respondents |
Judgment
[Please note that this case has not been edited in accordance with the current Singapore Law Reports house style.] Judgment reserved. Lai Kew Chai J: 1 This appeal arose from the decision of the assistant registrar dismissing an application by the defendants for all further proceedings in this action to be stayed. The defendants founded their application on an exclusive jurisdiction clause contained in a bill of lading requiring any dispute to be decided in the principal place of business of the carrier, which the defendants claimed was Taiwan. After hearing counsel for the parties, I dismissed the appeal. I now give my reasons. The facts 2 Admiralty in Rem No 657 of 1992 arose from the shipment in September 1992 of 197,026 cartons and 26,359 willow baskets containing 223,385 pieces of Chinese white garlic in total from Qingdao in the People’s Republic of China to Singapore under a bill of lading. Clause 3 of the bill of lading provided that: Any dispute arising under this bill of lading shall be decided in the country where the carrier has his principal place of business and the law of such country shall apply except as provided elsewhere herein. 3 The shippers of the goods were the China National Native Produce & Animal By-Products I/E Corp of Tibet and the consignees named in the bill of lading were Sinre Development (S) Pte Ltd of Singapore. The goods were shipped on the Liberian registered vessel Eastern Trust which was owned by the Liberian registered company Petersham Ltd. The vessel arrived in Singapore on 17 September 1992 and discharge of the goods commenced on 19 September 1992. The goods were discharged and stored by the appropriated berth operator Trans-Orient Shipping Pte Ltd. During and after the discharge, the following was discovered: (a) 37,435 cartons were badly damaged; (b) 16,550 cartons were slightly damaged; (c) 5,680 cartons were torn or exposed resulting in the loss of contents of about 4,810 kg; and (d) 435 cartons were short delivered. 4 The consignees obtained a warrant of arrest against the Eastern Trust on 24 September 1992, and the vessel was released on 7 October 1992 after the procuring of a bankers’ guarantee by the defendants. The plaintiffs filed their statement of claim on 23 October 1992. After entering an appearance on 24 November 1992, the defendants applied by way of summons-in-chambers on 22 December 1992 for all proceedings in Singapore to be stayed pursuant to the jurisdiction clause. This came up for hearing before the assistant registrar on 23 March 1994, and he dismissed the application with costs on 24 March 1994. The defendants appealed against his decision and the appeal came up for hearing before myself on 28 April 1994. The law governing applications for stay 5 The principles to be applied when deciding whether to grant a stay of proceedings where there is an exclusive jurisdiction clause have been authoritatively stated by the Court of Appeal in the case of Amerco Timbers Pte Ltd v Chatsworth Timber Corp Pte Ltd. Kulasekaram J in delivering the judgment of the court, said: The law concerning an application for a stay is clear. Where a plaintiff sues in Singapore in breach of an agreement to submit their disputes to a foreign court, and the defendant applies to [sic] a stay, the Singapore court, assuming the claim to be otherwise within its jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not. The court in exercising its discretion should grant the stay and give effect to the agreement between the parties unless strong cause is shown by the plaintiff for not doing so. To put it in other words, the plaintiff must show exceptional circumstances amounting to strong cause for him to succeed in resisting an application for a stay by the defendant. In exercising its discretion the court should take into account all the circumstances of the particular case. In particular, the court may have regard to the following matters where they arise: (a) In what country the evidence on the issues of fact is situated or more readily available, and the effect of that (b) Whether the law of the foreign court applies and, if so, whether it differs from Singapore law in any material (c) With what country either party is connected and, if so, how closely. (d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural (e) Whether the plaintiffs would be prejudiced by having to sue in the foreign court because they would: (i) be deprived of security for their claim; (ii) be unable to enforce any judgment obtained; (iii) be faced with a time-bar not applicable here; or (iv) for political, racial, religious or other reasons be unlikely to get a fair trial. 6 The Court of Appeal essentially adopted the test propounded by Brandon J (as he then was) in The Eleftheria; Owners of Cargo Lately Laden on Board the Ship or Vessel Eleftheria v Owners of the Ship or Vessel Eleftheria at pp 99 and 100, save that it took the view that a ‘strong cause’ entitling the plaintiff to resist a stay had to be established by showing that ‘exceptional circumstances’ existed. These principles were reaffirmed by the Court of Appeal in the recent case of The Vishva Apurva; Owners of and Other Persons Interested in the Ship or Vessel ‘Kalidas’ v Owners of Cargo Lately Laden on Board the Ship or Vessel ‘Vishva Apurva’. Chan Sek Keong J (as he then was), who delivered the judgment of the court, explained that: After the decision of the Court of Appeal in Amerco Timbers 7 In The Asian Plutus, Yong Pung How J (as he then was) explained (at p 451) that ‘[t]he legal basis for [The Eleftheria and Amerco Timbers principles is] the presumption that contracts freely entered into must be upheld and given full effect unless their enforcement would be unreasonable and unjust.’ This dictum was impliedly approved by the Court of Appeal in The Vishva Apurva, which allowed the appeal against the refusal of the courts below to grant a stay as the respondents ‘had failed to discharge the burden of showing that it was unfair, unjust or unreasonable for the court to hold them to their obligations under the relevant bills of lading.’ 8 It is clear from the cases that the court has a discretion whether to stay proceedings or not where there is an exclusive jurisdiction clause. This discretion should be exercised in favour of granting a stay unless the plaintiff can found a strong cause for resisting a stay based on exceptional circumstances. However, in deciding whether to grant a stay or not, the court should take into account all relevant circumstances of each case. The discretion would not be properly exercised unless this had first been done. The circumstances considered should not be limited to those factors which were listed for special mention by Brandon J (as he then was) in The Eleftheria, which are merely examples of the some of the circumstances which should be taken into account. Further, when referring to decided cases on the granting of a stay, it must not be forgotten that the decision in each case was arrived at after such a consideration. Failure to appreciate this will result in an erroneous understanding of the law. 9 In the present appeal, counsel for the defendants urged the court to grant the stay as the plaintiffs had not shown that it was unjust or unreasonable for them to be held to their bargain. He relied heavily on para 4 of the headnote of The Vishva Apurva, which reads as follows: The court should accord full recognition to exclusive jurisdiction clauses which are freely negotiated between parties and which are unaffected by fraud, undue influence or overwhelming bargaining power, unless the plaintiff who seeks to break his contractual obligation can show that trial in the contractual forum will be so gravely difficult and inconvenient that he will, for all practical purposes, be deprived of his day in court. The respondents failed to discharge the burden of showing that it was unfair, unjust or unreasonable to hold them to their contractual obligations. 10 In reply, counsel for the plaintiffs strongly urged the court not to adopt a mechanistic application of The Vishva Apurva. He submitted that a stay should not be granted where the plaintiffs are able to show that there were exceptional circumstances in favour of not granting a stay, which he submitted there were in the present case. He further submitted that the Court of Appeal in The Vishva Apurva was not attempting to depart from the principles laid down in The Eleftheria and Amerco Timbers. 11 I agreed with counsel for the plaintiffs. It is clear from the judgment of the Court of Appeal in The Vishva Apurva that the court accepted the law on exclusive jurisdiction clauses to be as stated in Amerco Timbers, and that the court did not purport to lay down some new alternative principle. 12 Paragraph 4 of the headnote is derived from the judgment of the Court of Appeal at p 189 of the report: In our view, FA Chua J failed to give sufficient weight to the exclusive jurisdiction clause. We should accord full recognition to exclusive jurisdiction clauses which are freely negotiated between the parties and which are unaffected by ‘fraud, undue influence or overwhelming bargaining power’ (see Warren Burger CJ in Bremen v Zapata Off-Shore Co at p 522), unless the plaintiff who seeks to break his contractual obligation can ‘show that trial in the contractual forum will be [so] gravely difficult and inconvenient that he will, for all practical purposes, be deprived of his day in court. Absent that, there is no basis for concluding that it would be unfair, unjust or unreasonable to hold that party to his bargain. 13 This appears to place a more onerous burden on the plaintiffs who are seeking to resist an application for a stay than the traditional Eleftheria test. However, the strong language used by the Court of Appeal must be viewed, as emphasized above, in the context of all the circumstances of that case. In The Vishva Apurva, the appellants had a very strong case for stay of the Singapore actions indeed. It appears from the judgment of the Court of Appeal that the appellants, the owners of the Vishva Apurva, were an Indian state shipping company with a registered office in Bombay (at p 178). The actions arose as a result of a collision between the Vishva Apurva and a Greek ship in the Suez Canal. The bills of lading upon which the actions were founded concerned a voyage from various European ports to various ports in India. The bills of lading provided expressly that any disputes should be litigated in Indian courts and should be governed by Indian law. Numerous actions had been commenced in India prior to the commencement of the respondents’ actions in Singapore, and, in fact, all the respondents except for the holders of two bills of lading in Admiralty in Rem No 232 of 1988 had also commenced actions in the Bombay High Court against the appellants claiming the same relief as in the Singapore actions. There was absolutely no connection with Singapore save that a vessel owned by the appellants which was not involved in the collision was arrested by the respondents in Singapore. As was pointed out by the Court of Appeal at pp 187 and 188: The cargo was being carried to Indian ports on an Indian ship by Indian shipowners under contracts of carriage governed by Indian law. It was highly probable that the risk and title to the cargo lay not with the European exporters but with the Indian importers and their insurers … We agreed with counsel’s contention that the real plaintiffs were, in all likelihood, the consignees in India … [T]here was no suggestion whatever that the Indian consignees did not know that the goods were being shipped on one of the defendants’ vessels … We find it ironical that in these circumstances, the Indian consignees or their Indian insurers should now complain that it was unjust to them that they should have to litigate with the appellants in India. 14 Based on such a fact situation, it is not surprising that the Court of Appeal required the respondents to show a very strong cause indeed before refusing a stay. I do not think the Court of Appeal purported or intended to lay down a new test which should be applied to all cases where an exclusive jurisdiction clause is present. In my view, the court was merely applying the general test as set out in Amerco Timbers and at pp 179 and 180 of the judgment of the Court of Appeal in The Vishva Apurva. However, the court also took the view that on the facts of that case, it was necessary for the plaintiff to show that the circumstances were so exceptional as to lead to the conclusion that he would be effectively deprived of his day in court in the contractual forum before it would find that a strong enough cause to resist a stay had been established. 15 Support for this view may be derived from The Vishva Apurva itself, where the Court of Appeal clearly considered each of the factors raised by the parties for and against a stay in order to decide whether exceptional circumstances had been shown by the respondents. Further support may be found in the judgment of the United States Supreme Court in the case of Zapata Off-Shore Co v The ‘Bremen’ and Unterweser Reederei GmbH. That case concerned a contract to tow an ocean-going self-elevating drilling rig owned by the plaintiff from Louisiana in the United States to Ravenna in Italy. The plaintiff solicited for bids for the contract, and the defendant was the lowest bidder. The plaintiff asked the defendant to submit a contract, which it did. The contract contained a clause providing that all disputes under the contract should be resolved before the High Court in England. After reviewing the contract, the plaintiff made several changes but left the jurisdiction clause intact. The parties then entered into the contract as amended by the plaintiff. The drilling rig was damaged in the Gulf of Mexico whilst being towed by the defendant’s tug from Louisiana to Ravenna. The plaintiff then commenced an action in breach of the jurisdiction clause in the United States District Court in Florida against the defendant seeking US$3,500,000 damages. An application by the defendant to stay the action based on the jurisdiction clause failed before the United States District Court and the appeal against this decision was dismissed by the Court of Appeals. The matter then came before the United States Supreme Court. The record before the court contained an affidavit deposed to by the managing director of the defendant claiming that the defendant considered the choice of forum clause to be of ‘overriding importance’ and that the English High Court had been proposed by the defendant in an effort to meet the plaintiff halfway. It was also alleged that the defendant would not have entered into the towage contract if the jurisdiction clause had not been accepted by the plaintiff. On these facts, Burger CJ, who delivered the majority judgment of the court (Douglas J dissenting), said: We are not here dealing with an agreement between two Americans to resolve their essentially local disputes in a remote alien forum. In such a case, the serious inconvenience of the contractual forum to one or both of the parties might carry greater weight in determining the reasonableness of the forum clause. The remoteness of the forum might suggest that the agreement was an adhesive one, or that the parties did not have the particular controversy in mind when they made their agreement, yet even there the party claiming should bear a heavy burden of proof … This case, however, involves a freely negotiated international commercial transaction between a German and an American corporation for towage of a vessel from the Gulf of Mexico to the Adriatic Sea. As noted, selection of a London forum was clearly a reasonable effort to bring vital certainty to this international transaction and to provide a neutral forum experienced and capable in the resolution of admiralty litigation. Whatever ‘inconvenience’ Zapata would suffer by being forced to litigate in the contractual forum as it agreed to do was clearly foreseeable at the time of contracting. In such circumstances it should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court. Absent that, there is no basis for concluding that it would be unfair, unjust or unreasonable to hold that party to his bargain. (Emphasis added.) 16 In my judgment, therefore, it is not necessary for the plaintiff to show in every case that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court. Such exceptional circumstances may have to be shown in cases where it is clear that the clause governing the contractual forum was an essential term of a freely negotiated contract as was the case in Zapata Off-Shore Co v The ‘Bremen’ and Unterweser Reederei GmbH. Similarly, if the case is one that cries out to be tried in the contractual forum, apart from any jurisdiction clause, as was the case in The Vishva Apurva, then very exceptional circumstances indeed will have to shown. How exceptional the circumstances must be in each particular case will turn on the facts of that case. It is always a question of fact and degree. 17 The court will consider all relevant circumstances of each particular case before deciding whether a strong cause for a stay exists. In coming to a decision, the court will take a cumulative approach and give each circumstance due weight. A single circumstance may not by itself be sufficient to justify refusing a stay. However, taken together, the circumstances may be found to be sufficiently exceptional. Conversely, a single circumstance which by itself would be sufficient to warrant refusing a stay may be off-set to by another circumstance such an extent that on balance, a stay should be granted. 18 It should be noted that when considering the circumstances, the court will not give much weight to any substantive or adjectival legal disadvantages or advantages that the plaintiff may be subjected to or obtain if the action is stayed or not, as the case may be. I agree fully with the following passage from the judgment of Kan Ting Chiu JC (as he then was) in the case of Owners of Cargo Lately Laden on Board the Ship or Vessel ‘Humulesti’ v Owners of and Other Persons Interested in the Ship or Vessel ‘Humulesti’, where he said (at p 16): I am also of the view that we must be very careful in acting on any lost juridical advantage or inferring that any foreign system is inferior to our own, especially when counsel point to one or two points of difference in their clients’ favour without attempting a comprehensive or balanced comparison. I agree with Brandon LJ (as he then was) when he said in The El Amria [1981] 2 Lloyd’s Rep 119 that ‘It is … not only invidious in the extreme to attempt comparisons between … two different systems of administering justice; it is in any case impossible, on the hearing of a application of this kind, to examine the merits and demerits of the two systems in sufficient depth to reach a conclusion that either is to be preferred to the other.’ Parties who have agreed on a forum when goods are shipped should not lightly be allowed to change the forum when a dispute arises because ‘… where parties have agreed beforehand on the choice of jurisdiction, they must be deemed to have done so with sufficient knowledge of how it works, and what it can and cannot do, and to accept the situation for what it is. If the parties have chosen to submit their dispute to the exclusive jurisdiction of a foreign court, it is difficult to see how either party can in the ordinary circumstances complain of the procedure of that court …’: Yong Pung How J (as he then was), The Asian Plutus If the jurisdiction clause is accorded real recognition rather than lip service, then only very severe factors should be taken into consideration, such as a paralysis of the court system, the breakdown of law and order, the inavailability [sic] of legal representation, the inavailability [sic] of translation or interpretation services, or a fundamental change in the legal system of the agreed country of jurisdiction. The inability to apply for summary judgment, to have pre-trial discovery, the lower rate of interest on judgments and the payment of court fees are not, taken together, sufficient to release the plaintiffs from their agreement to sue in Romania. In my view, all that they had shown is that their interests are better served if the claims are heard in Singapore, and that is not enough. 19 When parties enter into a contract that contains an exclusive jurisdiction clause, they are agreeing, at the very least, that the substantive and adjectival law of the chosen forum should apply to any dispute. Any complaint made when a dispute arises that the law of the contractual forum is procedurally deficient or substantively unsatisfactory should only be given little if any weight. Circumstances relevant to the granting of a stay 20 I shall now deal with the circumstances of the present appeal which I considered to be relevant to the granting or withholding of a stay. The law governing the dispute 21 Clause 3 of the bill of lading provides that the law of the country where the carrier has its principal place of business shall be applied to any dispute arising under the bill of lading, subject to any other term of the bill of lading. From the evidence of the defendants, the principal place of business of the carrier was in Taiwan, so Taiwanese law would prima facie apply. It is clearly advantageous for questions of foreign law to be decided by the courts of that country, and this advantage has been recognized and given due weight in numerous cases. However, the importance of this factor will depend to a large extent on the difference between the applicable law and Singapore law. There will be no real prejudice to either party if the law of the foreign court does not differ significantly from the relevant law of Singapore. As Brandon J (as he then was) said in The Eleftheria: It is true that in The Athenée (1922) 11 Ll L Rep 6 and The Fehmarn 22 On a similar question, the Court of Appeal in Amerco Timbers said at p 184: There is no evidence before this court that Indonesian law differs from our law in any significant respect concerning matters relating to this claim or that there is likely to be any serious dispute on the application of Indonesian law to the issues in this case. Besides, there is no material to show that a Singapore court would have any difficulty in applying Indonesian law should the need arise. There may be cases where complicated issues of law are likely to arise when the application of the law by a foreign court may not be desirable and at best avoided, but there is no material before us to infer that this is one such case. That being so we would attach little weight to this factor. 23 In the present appeal there was no evidence adduced by either party as to whether and, if so, to what extent Taiwanese law differed from Singapore law. Accordingly, I did not give much weight to this factor. The location of evidence and witnesses 24 Counsel for the plaintiffs made much of the fact that most of the evidence was already in Singapore or was in the People’s Republic of China, and that little if any was in Taiwan. In this regard, he referred me to the affidavit of a director of the consignees, Mr Tan Kek Sing, filed on 11 February 1993, and in particular to paras 4 and 5 thereof. I reproduce the relevant portions: (4) At the discharge port, Singapore, the cargo and the carrying vessel Eastern Trust were inspected during and (5) Based partly on my own knowledge, and partly from information from Mr Francis Tan of Tri-Spec Services Pte (a) The cargo originated from the People’s Republic of China (PRC). The shipper named on the material bill (b) The cargo was loaded at Qingdao, PRC on board Eastern Trust, a vessel registered in Monrovia, Liberia (c) The cargo was on time charter during their voyage. (d) The Master of Eastern Trust, Capt Rodolfo C Lagapa, and several officers were Filipinos. (e) The cargo was discharged at Berth No. J8, Jurong Commercial Wharves, Singapore, and stored at (f) The cargo was damaged and short delivered, as detailed in the statement of claim. (g) A tender sale of the damaged cargo was carried out in Singapore by Mr Francis Tan of Tri-Spec 25 Counsel for the plaintiffs also relied on the fact that it would be very difficult for witnesses from the People’s Republic of China to travel to Taiwan to give evidence while it would be easy for them to come to Singapore. He based this submission on the affidavits of Mr Tan Kek Sing filed on 11 March 1993 and 22 March 1994, wherein Mr Tan stated that he believed that witnesses from the People’s Republic of China would find it very difficult to travel to Taiwan based on what he had been told by a manager of a large Chinese corporation. 26 In reply to these contentions, counsel for the defendants relied on the following paragraphs of the affidavit of Mr Sea Strong Lee, the president of the owners of the vessel and the president of Venture Marine Corporation, the managers of the vessel, filed on 18 October 1993: (6) Further, I am advised that as the sea and cargo worthiness of the vessel Eastern Trust is in issue (as raised 7 Apart from documentary records and evidence, the technical manager of Venture Marine Corporation who 27 Counsel for the defendants also relied on the opinion of Di Xiao Feng, a lawyer of the People’s Republic of China, that citizens of the People’s Republic of China are entitled to travel to Taiwan and would be granted exit permits to do so subject to certain limited exceptions. 28 This is a claim for damage to and short delivery of cargo. In the statement of claim filed by the plaintiffs, the defendants are alleged to be liable on the ground that they failed to deliver the goods in the same good order and quantity as shipped and/or that they failed to ensure that the vessel was seaworthy before or at the time of shipment of the goods and/or that they failed to properly man or equip the vessel or to properly stow and carry the goods. If the defendants are found liable, there will then be the question of assessing the damages the plaintiffs are entitled to. 29 On the material before me, it seemed that much of the evidence relevant to issues that might be raised at the trial of the dispute was to be found in Singapore. Evidence as to the quantity and condition of the goods at the point of discharge was clearly to be found in Singapore. Similarly, evidence as to the condition and seaworthiness of the vessel at the point of discharge would also be in Singapore. Most of the evidence pertaining to the quantification of damages was also in Singapore. Evidence of the quantity and condition of the goods when shipped might also be required, and also evidence of the care taken of the cargo during the voyage from China to Singapore. Most of this evidence would be in the hands of the Chinese shipper or the master and crew of the vessel. Although the unnamed technical manager of the defendants might be able to give some useful evidence, and some of the Taiwanese documents might be helpful, the material before me did not impress on me the importance of such evidence. It seemed to me that this was a case where trial in Singapore would clearly result in far greater convenience and saving of costs for all the parties as most of the essential evidence was already here. This factor therefore favoured refusing a stay. 30 I should add that on the depositions contained in the affidavits, it was unclear if citizens of the People’s Republic of China would in fact experience any difficulty in going to Taiwan to give evidence. I accordingly did not give any weight to this factor. Necessity for translation 31 Counsel for the defendants urged the court to consider the fact that trial in Taiwan would avoid the necessity of translating Chinese and Taiwanese documents into English, and would also obviate the need to obtain Mandarin interpreters for Chinese and Taiwanese witnesses. I agreed with Yong Pung How J (as he then was) in The Asian Plutus that it was difficult to attribute much weight to this factor in the multi-lingual society of Singapore, especially where the language concerned was one of the four official languages of the Republic. Concurrent Singaporean proceedings 32 In the present case, part of the claim concerned 5,680 cartons of Chinese white garlic which had been torn which resulted in the loss of their contents amounting to about 4,810 kg, 463 willow baskets of Chinese white garlic which had been damaged which resulted in a loss of about 1,374.50 kg and 435 cartons which were short delivered. The consignees commenced an action in respect of these particular losses in Admiralty in Personam No 134 of 1993 against the appropriated berth operator which operated the godown in which the goods were kept. 33 Counsel for the plaintiffs submitted that the court should have regard to the action against the appropriated berth operator when deciding whether to stay the action against the defendants. I agreed. For this portion of the cargo, the damage complained of must have been caused either by the defendants or the appropriated berth operator. The plaintiffs were merely being prudent in commencing the action against the appropriated berth operator. Although this was not a case, as in The El Amria, where the plaintiffs commenced an action against a third party as a result of the defensive stance taken by the defendants, it was also not a case where ‘on the bare facts which have been made available to this court, it is not possible to be convinced that the action … need have been taken at all.’ (per Yong Pung How J (as he then was) in The Asian Plutus). I am of the view that the plaintiffs acted legitimately and wisely in commencing the action against the appropriated berth operator. I recognize that the quantity of the goods involved in this subsidiary action is not great when compared with that in the main claim, but it is certainly not negligible. If the main action were stayed in favour of the Taiwanese courts, and the subsidiary action proceeded here, a situation as existed in The Vishva Apurva would arise, with a real possibility of conflicting decisions in different countries. The effect of the facts underlying the jurisdiction clause on the strength of the prima facie case 34 Counsel for the plaintiffs submitted that the court should also take into account the facts underlying the agreement on jurisdiction in arriving at a decision. I agreed that this was a relevant consideration. The normal contractual principles should be applied when deciding whether a jurisdiction clause is part of the agreement between the parties. As was correctly pointed out by Kan Ting Chiu JC (as he then was) in Owners of Cargo Lately Laden on Board the Ship or Vessel ‘Humulesti’ v Owners of and Other Persons Interested in the Ship or Vessel ‘Humulesti’ (at pp 10 and 11): Counsel for the plaintiffs also raised an argument that was not made before the assistant registrar. This is that the plaintiffs had no notice of the bills of lading until they actually received them, and had no say in the jurisdiction clause in those bills. The answer to this is that the plaintiffs as purchasers of the ship plates could have insisted that the nationality or domicile of the carriers must be acceptable to them, or that the jurisdiction clause be deleted from the bills of lading to be issued. If they had done neither, they cannot complain when the defendants rely on this specific and unambiguous provision in the bills. 35 Once a jurisdiction clause is incorporated into an agreement, the burden is on the plaintiff to show a strong cause founded on exceptional circumstances why a stay should not be granted. However, the granting of a stay is nonetheless discretionary, and it is legitimate when exercising this discretion to consider the facts underlying the jurisdiction clause. In the present case, the jurisdiction clause provided that disputes should be resolved by the courts of the country where the carrier has its principal place of the business. The vessel concerned was a Liberian registered vessel owned by a Liberian company. The plaintiffs had no means of discovering until a dispute actually arose that the Liberian company, Petersham Ltd, actually carried on its business from Taiwan. In such circumstances, the burden on the plaintiffs should not be as great as compared to a case where the jurisdiction clause clearly points to an express forum such as India (as in The Vishva Apurva) or Japan (as in The Asian Plutus), or where the principal place of business of the carrier is easily ascertainable, as, for example, in The Eleftheria, where the principal place of business and the registered office coincided. A distinction should be drawn between those cases where the plaintiff knew or should have known at the time of contracting that he was agreeing to litigate disputes in a particular forum, and those similar to the present case where the plaintiff could not easily have known in advance what the contractual forum was. In the former situation, the rule should apply with full vigour. In the latter, the burden on the plaintiffs should be less onerous. Miscellaneous matters 36 Counsel for the plaintiffs made two further submissions in favour of refusing a stay. First, he submitted that as there was some uncertainty as to the principal place of business of the carrier, the court should treat the question as being open, and the burden should be on the defendants to displace the plaintiffs’ action in Singapore. I found no merit in this submission. The unrebutted evidence of Mr Sea Strong Lee was that the carrier had its principal place of business in Taiwan. Secondly, he submitted, based on the case of Fillite (Runcorn) Ltd v Aqua-Lift (a firm), that the jurisdiction clause would not apply to those of the plaintiffs’ claims which are not based on the contract contained in the bill of lading. I did not think there was any merit in this submission either. As stated by the learned authors of Cheshire and North’s Private International Law (12th Ed), at p 237: A plaintiff cannot avoid a foreign exclusive jurisdiction clause by simply framing his action in tort, since it is for the law governing (presumably) the agreement on jurisdiction, and not for English law as the law of the forum, to determine whether the claim lies in contract or in tort. The approach of the appellate court 37 The approach an appellate court should adopt when dealing with an appeal against the exercise of discretion by a lower tribunal is as stated by Lord Brandon in The Abidin Daver: [T]he decision whether to allow or refuse an application for the stay of an action, even though the court has jurisdiction to try and determine it, is a discretionary decision for the judge of first instance to whom the application is made. It follows that where the judge of first instance has exercised his discretion in one way or the other, the grounds on which an appellate court is entitled to interfere with the decision which he has made are of a limited character. It cannot interfere simply because its members consider that they would, if themselves sitting at first instance, have reached a different conclusion. It can only interfere in three cases: (1) where the judge has misdirected himself with regard to the principles in accordance with which his discretion had to be exercised; (2) where the judge, in exercising his discretion, has taken into account matters which he ought not to have done or failed to take into account matters which he ought to have done; or (3) where his decision is plainly wrong. 38 The authorities relevant to the granting or refusing of a stay where an exclusive jurisdiction clause exists were cited to the assistant registrar, and there is nothing to suggest that he applied the wrong principles when exercising his discretion. The arguments raised before the assistant registrar were similar to those raised before me, and from the notes of argument, it does not seem that he took into account matters which he should not or failed to take into account matters which he ought to have. Finally, having heard submissions of counsel for both parties and having reviewed the evidence before the court, I am unable to conclude that the assistant registrar’s decision was plainly wrong. I am of the view that he exercised his discretion judicially. Indeed, I too would have exercised my discretion in the same way, as, having considered all the above circumstances, I was of the view that the plaintiffs had shown sufficiently exceptional circumstances, which, when taken together, constituted strong cause for refusing a stay. Accordingly, I dismissed the appeal with costs fixed at $4,000. Appeal dismissed. Reported by Christopher Tang
on the relative convenience and expense of trial as between the Singapore and foreign courts.
respects.
advantages.
after discharge by myself [Tan Kek Sing], Capt HT Lim of Integral Marine Consultants Pte Ltd as plaintiffs’
surveyors, Mr Chan Cheow Teng for plaintiffs’ underwriters, Mr Francis Tan of Tri-Spec Services Pte Ltd as
underwriters’ surveyors and Capt Simon Wong of SSI Marine Surveying Pte Ltd for the charterers P & I Club.
Ltd and Capt HT Lim of Integral Marine Consultants Pte Ltd, which information I verily believe to be true, I say
the following:
of lading is a PRC company, China National Native Produce & Animal By-Products I/E Corp of Tibet.
The cargo was sold to Sinre Development (S) Pte Ltd, a Singapore company, through CITEC
Development Inc another PRC company.
Jurong Port Godown J8 and J17, Singapore.
Services Pte Ltd. No offers were received due to the extent of the damage. The damaged cargo has
been disposed of by Sinre Development (S) Pte Ltd by dumping the same at the Ministry of Environment
dumping ground in Singapore.
by the plaintiffs in their statement of claim filed herein), it will be necessary for the defendants to adduce
documentary records and evidence relating to these issues which records and evidence are kept and
maintained in Taiwan in Mandarin, the official language of Taiwan, by the said Venture Marine Corporation.
will be able to give evidence in respect of the sea cargo worthiness of the said vessel, in particular relating to
her ventilation equipment (which is crucial on the issue of liability on the plaintiffs’ claim) is Taiwanese and
resident in Taipei, Taiwan.